DOL Issues New Q&As

In July, the DOL issued a couple of new Questions and Answers regarding the FMLA. One of them addresses the issue of whether a remote or telemedicine visit with a health care provider can qualify as an “in-patient” visit. As a rule, in order for a condition that does not require in-patient care to qualify as a serious health condition one must receive in-person treatment by a health care provider.  

29 CFR Section 825.115(a)(3) provides: 

(3) The requirement in paragraphs (a)(1) and (2) of this section (which require ‘treatment by a health care provider’) for treatment by a health care provider means an in-person visit to a health care provider.  

Since the regulations clearly require an in-person visit, my initial thought was that the answer to this question would be “No.” Well, I was wrong.  Q & A number 12 states: 

12. Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?

Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.  

So, until at least December 31, 2020, remote or telemedicine visits that meet the requirements above will qualify as in-person visits under the FMLA.  All HR professionals who manage the application of their company’s FMLA program (and lawyers who think they know a thing or two about the FMLA), should make note of this change since it is going to expand the number of situations in which an employee will be eligible for FMLA leave.

Don’t Inadvertently Create COBRA Liability

As the COVID-19 crises continues, I am receiving more and more calls to assist businesses in downsizing, either through layoffs or significant reduction in hours.

There are so many moving parts in that process that it can be easy to lose sight of your obligations under COBRA, and that can lead to expensive mistakes. 

Both the Department of Labor and Internal Revenue Service have the authority to impose civil penalties if employers fail to provide compliant COBRA notices. The DOL can impose civil penalties up to $110 per day per person and the IRS can impose an excise tax of $100 a day per beneficiary and $200 a day per family, until employees receive an adequate notice.  

In addition, employers can face literally millions of dollars in damages in class action litigation. Just last week, a Fortune 500 company settled a class action lawsuit relating to deficient COBRA election notices for US$1.6 million dollars. More than two dozen class action COBRA notice lawsuits have been filed year to date, and we expect many more to be filed as the courts open up for business.  

You will notice that I refer to compliant, adequate and deficient notice. That is because merely providing notice is not enough; employers must provide the specific notice required in the Act.  

The COBRA notice requirements are fairly clear. An employer subject to COBRA is required to notify its group health plan administrator within 30 days after an employee suffers a qualifying event. Within 14 days of that notification, the plan administrator must notify the individual of his COBRA rights. If the employer is also the plan administrator and issues COBRA notices directly, the employer has 44 days to issue the COBRA notice.

COBRA election notices must be written in a manner calculated “to be understood by the average plan participant” and include: 

  • The name of the plan and the name, address, and telephone number of the plan’s COBRA administrator; (Several class action suits have been filed recently arguing that providing the general HR telephone number does not satisfy this element.)
  • Identification of the qualifying event;
  • Identification of the qualified beneficiaries (by name or by status);
  • An explanation of the qualified beneficiaries’ right to elect continuation coverage;
  • The date coverage will terminate (or has terminated) if continuation coverage is not elected;
  • How to elect continuation coverage;
  • What will happen if continuation coverage isn’t elected or is waived;
  • What continuation coverage is available, for how long, and (if applicable), how it can be extended for disability or second qualifying events;
  • How continuation coverage might terminate early;
  • Premium payment requirements, including due dates and grace periods;
  • A statement of the importance of keeping the plan administrator informed of any new addresses of qualified beneficiaries; and
  • A statement that the election notice does not fully describe COBRA or the plan and that more information is available from the plan administrator and in the summary plan description.

 Keep in mind that the use of a third-party administrator to issue COBRA notices does not mitigate an employer’s risk of noncompliance. You will be liable for the TPA’s failure. Ideally, employers should draft their agreements with their TPA’s to provide for indemnification of the employer for the TPA’s failure to comply with the current COBRA requirements.

If you act as your own plan administrator, the DOL has provided a model COBRA notice and considers use of the model notice to be good faith compliance with the general notice content requirements of COBRA.

As always, stay safe and don’t hesitate to call if you have any questions.

DOL Issues New Optional FMLA Forms

Last week the DOL announced that it was issuing new optional FMLA forms. You can find the announcement, and the forms, here. https://www.dol.gov/agencies/whd/fmla/forms

The new forms contain some subtle differences and, as I said, they are optional.

As always, keep in mind that you cannot require an employee who has already provided you with certification documentation to fill out the new forms nor can you even require an employee to use any certain forms. Per the DOL: “An employer must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying.”

Supreme Court Rules Title VII Prohibits Discrimination Based Upon Sexual Orientation and Transgender Status – Part II

On Monday I sent out an update that the U.S. Supreme Court had ruled that an employer who fires an employee for being gay or transgender violates Title VII. There are a few key aspects about this ruling that I want to point out.

  1. This is not new law. Unlike a new statute, this ruling is actually the Supreme Court telling us how Title VII should have been interpreted all along. And, many courts have been ruling that Title VII prohibits discrimination based upon sexual orientation and transgender status for years. However, the Fifth Circuit (covering Louisiana, Mississippi and Texas) has traditionally not construed Title VII in this manner. So, although this ruling is not technically “new law”, it will change the way the courts in the Fifth Circuit construe these types of cases in the future.
  1. This is effective immediately. When a statute is passed, it takes effect on a specific date in the future. Unlike a statute, the Supreme Court’s ruling is effective immediately.
  1. Change your policies now. The employee handbooks and manuals used by some employers contain a list of the types of characteristics that the employer will not discriminate against (age, race, sex, color, religion….). Although the Supreme Court ruling means that sexual orientation and transgender status are subsumed in “sex” employers should consider specifically listing sexual orientation and transgender status as protected characteristics in their handbooks and employee manuals.
  1. Train! We are all familiar with the fact that we must periodically train our employees on the application of our policies and procedures, and especially on our harassment/discrimination policies. Employers need to ensure that they revise their training to include sexual orientation and transgender status as protected classes when it comes to harassment and discrimination. We are going to see an increase in these types of cases, and our ability to prove that we provided adequate training will be a key element of our defense.
  2. As odd as it sounds, treating men and women the same can be discriminatory. The Supreme Court stated it this way: “An employer cannot escape liability by demonstrating that it treats males and females comparably as groups….An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule.” The fact that you don’t hire either gay females or gay males is not a defense; it still amounts to discrimination based upon sex.

EEOC Updates COVID-19 Technical Assistance Q&A

In its updated Q&As, the EEOC addresses some significant and current issues such as reasonable accommodation, hiring and onboarding, pandemic-related harassment, return to work, age discrimination, pregnancy discrimination, and sex discrimination regarding employees with caretaking/family responsibilities. I would recommend that you read the entirety of the Q&As. You can find them here: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term

Addressing an issue that has been presented to me several times in the past few weeks, the EEOC specifically addresses whether an accommodation is required for an employee who is not disabled, but whose family member may be at high risk for contracting COVID-19 due to underlying health or condition. Q&A D.13 states:

D. 13 Q: Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

D. 13 A.: No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

So, it is the EEOC’s position that you do not have to accommodate an employee’s concerns about returning to work because they have a family member who is at an elevated risk of a negative outcome from a COVID-19 infection. Regardless of how you respond to such a request, you should consider your previous responses to similar requests and make sure that you do not inadvertently discriminate against an employee with a disabled family member.

OSHA Issues First COVID-19 Related Citation to Nursing Home in Georgia

The Occupational Safety and Health Administration (OSHA) has issued its first COVID-19 related citations to a nursing home. OSHA claims that six nursing home employees in Georgia were hospitalized as a result of COVID-19 that they allegedly contracted while at work, and that the nursing home failed to report the hospitalizations to OSHA within the statutorily mandated time period. (Employees were hospitalized around April 19, but report was not made to OSHA until May 5.) OSHA has proposed a $6,500 fine for the “other than serious” citation.

Generally, employers must report incidents to OSHA within twenty four hours when an employee suffers a work-related in-patient hospitalization. This includes instances in which an employee is hospitalized because of COVID-19 if the employee contracted COVID-19 while at work and the hospitalization occurs within 24 hours of the employee contracting the virus. (Refer to 29 CFR 1904.39(b)(6)).

  • When several cases develop among workers who work closely together;
  • If it is contracted after lengthy, close exposure to a customer or coworker who has a confirmed case of COVID-19; or
  • If an employee’s job duties include having frequent, close exposure to the general public in a locality with widespread transmission.

You can find OSHA’s May 19, 2020 guidance on COVID-19 infection record keeping here: https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid- 19#:~:text=Under%20OSHA’s%20recordkeeping%20requirements%2C%20COVID,Prevention%20(CDC)%3B%5B2%5D

In the case of the Georgia nursing home, OSHA stressed that the widespread transmission of COVID-19 in nursing homes in general, and the fact that six employees in this particular nursing home tested positive for COVID-19 should have been an indication to the employer that the virus was work-related.

Bottom line: Employers must make themselves aware of OSHA’s reporting and recording obligations, and consider them each time an employee tests positive for COVID-19.

U.S. DOL Issues New FFCRA Q&A’s

The U.S. Department of Labor recently issued yet more FFCRA Questions and Answers. You can find the new Q&A’s here: https://www.dol.gov/agencies/whd/pandemic/ffcra-questions Numbers 89 to 93 are new.

I have summarized the new Q&A’s below, but I would encourage you to read the full, original Q&As.

89: I hire workers to perform certain domestic tasks, such as landscaping, cleaning, and child care, at my home. Do I have to provide my domestic service workers paid sick leave or expanded family and medical leave?

Yes if they are your employees, as opposed to independent contractors. This will generally hinge on whether or not the workers are economically dependent upon you for the opportunity to work.

90. If I am employed by a temporary placement agency that has over 500 employees and am placed at a second business that has fewer than 500 employees, how does the leave requirement work? Are one or both entities required to provide me leave?

The temporary staffing agency is not covered by the FFRCA because it has more than 500 employees. The second business may be required to provide you with FFCRA leave, depending upon whether or not it is your joint employer.

91. My employees have been teleworking productively since mid-March without any issues. Now, several employees claim they need to take paid sick leave and expanded family and medical leave to care for their children, whose school is closed because of COVID-19, even though these employees have been teleworking with their children at home for four weeks. Can I ask my employees why they are now unable to work or if they have pursued alternative child care arrangements?

You can ask the employees about any changed circumstances, explaining why they are now unable to work, but “you should exercise caution in doing so, lest it increase the likelihood that any decision denying leave based on that information is a prohibited act.” The employees may be entitled to FFCRA leave now if, for example, they have made the decision to take paid sick leave or expanded family and medical leave to care for their children so that their spouse could work or telework.

92. My employee claims to have tiredness or other symptoms of COVID-19 and is taking leave to seek a medical diagnosis. What documentation may I require from the employee to document efforts to obtain a diagnosis? When can it be required?

You can require the employee to identify his or her symptoms and a date for a test or doctor’s appointment.

93. I took paid sick leave and am now taking expanded family and medical leave to care for my children whose school is closed for a COVID-19 related reason. After completing distance learning, the children’s school closed for summer vacation. May I take paid sick leave or expanded family and medical leave to care for my children because their school is closed for summer vacation?

Not unless the child’s care provider is closed or unavailable for a COVID-19 related reason.

OSHA Suggestions Regarding Coronavirus

You are all no doubt aware that OSHA does not yet have a specific standard addressing viral pandemics. Rather, the General Duty Clause will be applied to this situation.  The GDC requires that “Each employer shall furnish each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.”

Despite the wording of the GDC, it does not make employers absolute guarantors that their employees will not be injured or exposed to hazards on the job. Rather, OSHA must prove four elements in order to establish a violation of the GDC. One of those elements is that the employer failed to implement feasible and useful methods to correct the hazard.

OSHA recently issued “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.” You can find it here: https://www.osha.gov/Publications/OSHA3994.pdf . Most of these are common-sense steps that we are familiar with. OSHA may construe a failure to follow these ten steps as a failure to implement “feasible and useful methods to correct the hazard” should an employee contract the virus in your workplace.

If you are not already doing so, I would suggest that you strongly consider implementing as many of the ten steps recommended by OSHA as possible, and that you maintain records showing that you were aware of OSHA’s recommendations and followed them. Complying with the recommendations is not enough; you must be able to prove that you did so.

As always, don’t hesitate to reach out to me if you have any questions.

Stay safe.

The IRS Tells Us What Information We Must Obtain From Employees On FFRCA Leave In Order To Qualify For The Tax Credit AKA: This Is What Your Forms Should Look Like

THIS IS IMPORTANT! If you want to take advantage of the tax credit available for paid leave provided to your employees under the EPSLA and EFMLA of the FFCRA, you need to read this. The IRS has given us an outline of what some of the FFRCA-related forms should look like.

This outline is contained in the IRS’s new list of Frequently Asked Questions related to the documentation requirements of the tax credit provisions of the FFCRA. For those of you who want to wade through the original document, you can find it here https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs Continue reading “The IRS Tells Us What Information We Must Obtain From Employees On FFRCA Leave In Order To Qualify For The Tax Credit AKA: This Is What Your Forms Should Look Like”